THE DESIGN OF ADVANCED HUMAN-POWERED VEHICLES/VELOMOBILES
AND PRODUCT-LIABILITY LITIGATION: CAN THEY CO-EXIST IN THE LIGHT OF APPARENTLY OUTRAGEOUS
US CASES?

David Gordon Wilson

ABSTRACT.

Much publicity is given to "horror stories" of seemingly excessive judgments
against apparently ethical manufacturers after they have been sued by unscrupulous people
pretending to be victims of what is claimed to be deficient design. However, these reports
are far from representative of the actual situation. It is pointed out in this paper that
the other side of this story is that product-liability litigation is decreasing quite
markedly in the US; that this form of litigation brings about major improvements in
product design and in the safety of the public; and that it is possible to avoid most
negative impacts of such litigation by striving for, and documenting. excellence in the
design and manufacturing of products, by clearly warning users of dangerous situations,
and by putting trust in insurance that is standard for the industry.

INTRODUCTION.

Background.

In many areas of modern life we are driven by what we know of extreme cases: only these
are reported by news organizations. Here is a recent .example (disguised so that your
author does not get sued! I was an "expert witness" for one of the manufacturers
involved).

"Bill", a young American, bought a regular "road" bicycle for
recreation. He found that he liked biking, and hearing that sew-up tires are used by
racing cyclists and would enable him to go faster, bought new wheels and tubular tires and
had them installed on his bike. One day he went with a group of friends on a ride that
included the summit of a small mountain. While pausing at the top he joked to his friends
that he had bad brakes, showing that with the brake levers fully squeezed against the
handlebars he could move his bike easily back and forth. He then said "Last man down
the mountain buys the beers!" and rushed off down the steep, rough, bumpy, asphalt
road with the others in hot pursuit. The road had signs showing a speed limit of 35
km/h.and,after about a kilometre, a warning of a sharp S-bend. The person who was closest
behind Bill said that as he approached the bend his cycle-computer was registering about
75 km/h and that Bill was out of sight ahead of him. He braked to get around the bend and
saw that Bill had hit a stone wall and was lying on his back some distance from his
bicycle.

Bill had severed his spinal cord and was, tragically, a quadriplegic from then on. He
gave his bike to a family member, who, after having the front wheel and fork replaced,
used it regularly. Bill confessed at some point that the accident was his fault. However,
after over a year he (or possibly his insurance company) decided to try to get some money
through the courts, and his lawyer sued the bicycle shop that sold him the bike, the
bicycle manufacturers, and the supposed manufacturers of the rims and the tires (the
actual wheel and tire had been disposed of). One would have thought that these companies
would have had a very strong case. Yet one by one they, or rather their insurance
companies, all "settled out of court", meaning that they agreed to pay large
sums to the plaintiff to avoid the far-larger costs of going to trial. They also may have
felt that, however strong their case, the sight of this young man sitting paralyzed in a
wheelchair. with his wife and child, would be enough to make an American jury decide that
these insurance companies were rich and Bill and his family had already been punished
terribly. To award him a large settlement even though he was at fault could be possibly
some form of jury-administered social justice.

The present status of product-liability litigation in the US.

Cases like this seem to be typically American. In what is considered to be a
free-enterprise system (but is in fact increasingly regulated) the absence of a socialist
health-care and welfare system seems to give credence to reports of juries leaning to the
"left". They are drawn largely from the lower end of the economic spectrum
because professional people try to find reasons to be excused from jury service. However,
contrary to popular belief, jurors do not overwhelmingly sympathize with individual
plaintiffs at the expense of companies. According to Jury Verdict Research reported in
Business Week on November 8, 1993, defendants won 57 percent of the products-liability
suits in 1992. Popular opinion also paints a picture of a flood of products-liability
litigation. In fact, products-liability lawsuits were less than 1 percent of the total
state and federal caseload in 1994[1]. (There is a huge
backlog of lawsuits awaiting trial in most US jurisdictions, but most cases are suits
between businesses and suits between family members, particularly divorce cases). The
number of product-liability lawsuits is also in sharp decline, having dropped 40 percent
between 1985 and 1991. Insurance premiums covering product liability dropped 45 percent
between 1987 and 1993[2].

There is also concern regarding so-called "punitive damages" awarded by some
courts. These are imposed for particularly egregious cases in some states (punitive
damages are not allowed in many states. including Massachusetts) and are derived from
ancient Roman and English law[3]. In fact, apart from the
special and shocking case of asbestos liability, the awarding of punitive damages is very
rare in the US, under ten cases per year. A velomobile/HPV manufacturer would have to be
very delinquent, or exceedingly unlucky, to be included in this number.

The remaining fear of liability lawsuits.

So far I have given some details of the type of case that strikes fear in the heart of
small manufacturers who are concerned that one such lawsuit could put them out of
business; and I have also tried to show that much of the concern is exaggerated. However,
I should describe how lawsuits come about and are adjudicated or settled in order to give
manufacturers of velomobiles, particularly those outside the US, an understanding of the
risks and rewards of exporting to the United States.

The US is a country where even a poor person can sue the world's largest corporation.
To do so she/he needs to persuade a lawyer who specializes in this type of case that
her/his injuries or other harms are sufficiently serious to justify taking action. The
lawyer will generally do this on a "contingent-fee" basis: that is, she/he will
charge the client nothing for his/her services, but will take 25 - 33% of any monetary
award. This has the socially desirable consequence that people of limited wealth are given
full access to the courts in cases where they have been harmed. Although occasional large
awards receive a great deal of publicity, juries are generally hard-headed and reasonable
in awarding damages.

Most cases, however, do not go to trial. The early stages of a lawsuit are taken with
"discovery", a process in which each side is required to make available all
relevant written records and all relevant people to give depositions. So-called expert
witnesses are hired by both sides to add weight to the testimony. The discovery process
can be a time-consuming, disruptive and costly time for a manufacturer, although the
attorneys' and experts' costs are usually handled by the insurance company. The opposing
lawyers can demand, however, all drawings, sketches, notes and other records that have any
possible connection with the injury to the plaintiff. Each item considered actually
relevant is labelled as "Exhibit A, B" etc. During this period the attorneys for
each side are assessing their situations and their likelihood of winning or losing in the
trial. At some point the lead attorney on one side will contact the lead attorney on the
other side and say something like the following. "As a result of discovery and
depositions we have an overwhelming case, and your side is likely to have to pay large
sums if we go to trial. My client has expressed a willingness to settle out of court for a
payment of X dollars." Sometimes the other attorney accepts the offer with alacrity.
More often there is a period of negotiation, as in a market anywhere. In under ten percent
of cases agreement is not reached, and a trial date is set. This may be several years
after the suit is filed.

I believe that this procedure is fair and leads to social justice in the large majority
of cases. It is difficult to be fair in cases where a life has been lost or serious
permanent injury has resulted from a product defect. Suppose, for instance, a promising
young person just married and just launched on a promising career is permanently confined
to a wheelchair because the fork of a new bicycle snapped in normal use. No amount of
money could compensate this person and her/his spouse and family for the terrible change
in the quality of their lives for perhaps the next fifty years. The medical-care costs
alone could amount to a huge sum. Such cases could be regarded as the norm in malpractice
lawsuits against the medical profession, which takes extraordinary steps to prove that
every decision and procedure taken has been for the best. A whole battery of very
expensive tests will often be specified for a minor ailment, purely to ward off a suit
against supposed malpractice in the event that a patient's recovery is not all that might
be expected. The manufacturer of a human-powered vehicle does not need to go to these
extremes. However, she/he must likewise take very conscientiously, and document in some
way, the design and manufacture of any component the failure of which could cause, with
reasonable probability, serious injury or death.

Manufacturers in countries where liability litigation is rare might well react with
some alarm at having to take major precautions to avoid being sued, and to face unwelcome
prying into their design, manufacturing and business practices if they are sued. These
seem to be the price we pay to have markedly safer products in the US (and increasingly
the safety advances achieved in the US partly through liability lawsuits have been adopted
in Europe and elsewhere). Consider the alternatives.

It is claimed above that the quality of design and manufacture is enhanced by the
possibility of liability litigation. There is, however, some question about the benefits
that occur if a case is settled out of court, because of the secrecy that is more marked
in the US than in, at least, Britain. (My professional field is turbine design, and the
catastrophic failure of a turbine in Britain is followed by a full exposure of the causes,
and the steps taken to cure the problem, in papers presented to the Institution of
Mechanical Engineers. This public airing seldom occurs in the US, except in the case of
airline crashes.) However, I believe that the message does get broadcast. An example is a
case in which I served as an expert witness. A linesman working on overhead wires while on
a truck-mounted aerial ladder was severely injured when the ladder suddenly collapsed,
dropping him to the pavement. The cause was relevant to safety in HPVs: the ladder was
operated by wire ropes that passed around several sheaves (figure 1). The sheave diameter
was only seven times the wire diameter. The standards set by the wire-rope manufacturers
are that the sheave/rope diameter ratio should be 72 for long life, with 42 being an
absolute minimum. At a ratio of 7, the rope was bound to have a very short life before
metal fatigue caused it to fail without warning. (The parallel with HPVs is that bicycle
brakes and gear-shift cables are taken around pulleys and bends with a diameter ratio of
far less than 42, and also fail periodically without, usually, any warning.)

Figure 1. Sheave/rope diameter ratios

From a guide by Armco Steel

When the lawyers for the two sides agreed on an out-of-court settlement, I became very
disturbed that workers would be killed or injured because now, it seemed, the information
about the extreme hazard that these ladders and booms posed would not be made public. The
attorneys agreed with me that my professional engineering ethics outweighed my
expert-witness responsibilities, and allowed me to try to send warnings of the extreme
danger of these ladders to unions and other places. However, I believe that the
manufacturer recalled the trucks faster than did any actions resulting from my warnings:
the company did not want to face the rash of lawsuits that it now knew would be certain to
come. Liability litigation had worked! Why doesn't it work to give us safe brake cables? I
have had many cables, and handlebars, and cranks break, but fortuitously never at a
critical time. If I had, there would have been a strong probability of a fatal accident,
and, because bicycle accidents are usually not investigated with any degree of
seriousness, the cause would not have become known.

Would it be better without lawyers
willing to sue?

Contrast the recent US situation with that in Britain when I last lived there, in the
1960s. As an example, on one occasion I went to the National Health doctor specified for
my district after I had had a sore throat for several weeks. With very few questions he
told me to lower my pants, and jabbed a needle into my right buttock. By the next day the
sore throat had cleared up magically. But my right leg grew huge and red and hot and very
itchy. I could sleep at night only by lying in a tub of cold water. I went back to the
doctor twice during the next two weeks as the swelling spread over the rest of my body,
increasing my weight 17 kg. He waved me airily away. "It will go down!" he said.
At about that time I had to fly to Boston to be introduced to the firm that had just hired
me. My new boss met me at the airport: I was trying to disguise my sorry condition. From a
distance of 20 m he cried out "What's the matter with you, Dave? You look as if you
have a penicillin allergy!" He rushed me to his doctor, who said that I could have
been dead in another 24 hours because the swelling was closing off my airways, and he
treated me expertly so that I was fully recovered within five days.

There are several other similar anecdotes that I could tell about medical care in
Britain, at least one occurring to a friend relatively recently. To me, there is one
principal conclusion: physicians there have, or had, absolutely no concern about being
sued. In the apparent absence of any other form of control they had absolute power. And
absolute power corrupts. I have no doubt that many cases of malpractice were quietly swept
under the rug. That leads inevitably to another rather startling conclusion. Britain has
too few lawyers pursuing malpractice cases. They may not take cases on a contingent-fee
basis, and they are also liable to face payment of costs if they lose a case. I am sure
that this is also true of many other countries. Another conclusion is that the perceived
(not necessarily the real) costs of medical care will undoubtedly seem lower in Britain
than in the US.

If I had to choose between just these two alternatives, I would unhesitatingly take the
US system, even though it makes engineering design and production a little more expensive.
It produces a far safer society. If this were a paper about the reform of liability and
malpractice law I could quote several authors who have proposed improvements that should
bring about a happy compromise between these two alternatives (Linowitz[4],
Bok[5]). But this paper is about the impact of the existing
US system on the design of advanced human-powered vehicles. This is the topic of the next
section.

IMPACT OF LIABILITY LAWS ON HPV DESIGN.

The perceived impact of liability laws in the late 1970s on the design of the Avatar
2000, which we believed to be the first recumbent bicycle to be produced for general sale
since the 1930s, was the following. The initial impetus for the design was my concern for
safety[6], because I had seen many reports of riders of
regular "road" bicycles being severely injured or killed after going head-first
over the handlebars on applying the front brakes too hard, or riding into a grating or
hole in the pavement, or having baggage or a stick get caught in the front wheel, for
examples. It seemed to me to be safer to go feet first. It was easy to list, in addition.
other virtues that would improve safety: the near-impossibility of catching one's pedals
on the road; the great improvement in the ability of the rider to see forward and to the
side; the improved braking capability on both wheels; the shorter reaction time resulting
from the hands being on or close to the brake levers at all times; and the lessening of
injuries because riders are closer to the ground than when on road bikes. There were, and
are, a few negative aspects to recumbents: the view to the rear is more circumscribed
unless one uses a rearview mirror: and it is difficult to recover from a skid because of
the low centre of gravity and the attendant rapidity with which one is "dumped"
on the ground. The "safety balance" is clearly in favour of the recumbent.
However, we knew that we would not receive large cheques from grateful riders who felt
that our bicycles had saved them from serious injury. We would be more likely to be sued
for larger amounts in those few areas in which our design might be worse than that of
upright bicycles. (Designers of three- and four-wheeled vehicles have other advantages and
disadvantages, of course).

We responded to this dilemma was in three ways:

1. we made the bicycle as safe as practicable;

2. we gave prolific warnings about possibilities of danger: and

3. we took out an insurance policy that was standard for (small?) bicycle
manufacturers.

Figure 2. The Avatar 2000

We discussed the positive and negative features of the bicycle design with the
insurance representative, who felt comfortable in giving Fomac, manufacturers of the
Avatar, a policy that would apply to manufacturers of regular bicycles. There was an
indication that if the Avatar turned out to be as much of an improvement in safety as we
claimed, our rates might even be reduced. This gave an added incentive, if one was needed,
to increase safety in our design wherever possible. As mentioned above, insurance rates
for liability have in fact dropped markedly since that time.

THE INSURANCE INDUSTRY.

Insurers are therefore major players in liability litigation, frequently almost taking
the place of the defendants in pretrial organization of the defense and in the trial
itself. Their role is that of insuring against risks to businesses, and of doing it in a
way that is least costly to manufacturers (otherwise they would go to other insurers)
while making a profit themselves. Insurers have a major stake in litigation, and have an
obligation to ensure that any settlement is not greater than the limits of the insurance
that has been purchased by the manufacturer. An insurer (meaning an individual agent or
the firm she or he represents) may decide to settle out of court even though many may
believe the case to be defensible, as in the example quoted above, simply to avoid the
continuing high costs of attorneys and expert witnesses and the large amount of time that
its own personnel will be spending on defending the suit.

An insurer might also be behind Bill's late decision to bring suit. If he had a policy
that covered the medical consequences of accidents, his insurance company could well have
contemplated the enormous lifetime costs of providing medical and other services and have
taken the decision to institute the suits. Sometimes American courts play out dramas in
which one family member may bring suit against other family members, a seemingly highly
distasteful procedure. The suit may, however, be required by provisions in small print in
the insurance policies, not by any previous ill-will in the family. There is, therefore,
economic justification for this type of suit. It would be better if a system could be
devised that was not so wasteful and invidious for the parties involved: a large
proportion of any funds transferred from the defendants to the plaintiffs goes to legal
costs, and the proceedings are likely to split families apart.

EDUCATION AND LITIGATION.

Design education has been helped by liability litigation. At M.I.T., and I'm sure at
most universities, concern about the impact of litigation on engineering has led to an
much-increased emphasis on engineering ethics and our responsibilities to society. The
disaster to the Challenger space shuttle was a shock that brought about changes,
particularly after it was found that engineers who had been fighting to have the launch
put off because of what seemed to them obvious flaws in the low-temperature performance of
some seals had been overruled by policy-makers, some of whom were also engineers. Our
students are shown a videotape of a talk by one of the "whistle-blowing"
engineers involved in the Challenger case, and many are moved to tears. We examine other
case studies for lessons to be learned. For instance, one of the first skyscraper fires
occurred in a New York building on the 37th floor, far too high to be reached by ladders.
The first group of firemen decided to take the elevator to the 38th floor, break through
the ceiling and spray water on the fire. However, the elevator stopped on the 37th floor,
the doors opened automatically, and all were killed. The elevator was one of the first to
be operated by heat-sensitive buttons, and these naturally stopped it where the fire was
blazing. We ask our students how it was that in the several years required to invent,
develop and manufacture this elevator-control system, no one in the company making them,
nor in the architectural engineering offices specifying the use of the buttons, ever
considered what would happen in the case of a fire. It seems likely that one or more
people did think of this possibility, but were overruled. One obvious conclusion is that,
like the British physicians mentioned above, no one was concerned about being sued for
malpractice. Yet it is surely malpractice to design and install a device that, although it
works wonderfully for every expected use, will kill or injure in an unexpected, but not
unlikely. situation.

Can concern for safety go too far?

Designs analogous to heat-sensitive buttons for elevators can be found in many areas.
Only a few years ago we drove cars that had rigid steering columns ready to pierce
drivers' chests even in a low-speed collision. Now we have cars in which the driver and
occupants are surrounded by air bags and restrained by belts and protected by a passenger
compartment that will allow people to walk away from a frontal collision at 60 km/h and
higher. Some research has found that some drivers like to operate their vehicles at an
exciting level, a level at which they perceive a certain degree of danger. Give them seat
belts and airbags and their average speed increases so that they feel the same degree of
safety or danger. On the other hand, there is in the US at present an enthusiasm for huge
sports-utility vehicles, partly because they are much more likely to survive, along with
their drivers and passengers, in collisions with regular automobiles. The safety of
others, including pedestrians and riders of HPVs, has thereby decreased. There is,
therefore, an optimum level of safety engineering. This level should be found by
estimating the benefit-cost ratio of any proposed change, evaluated over the whole
affected population, not just the users of the new system[7]. The
"benefit" side of such analyses requires the invidious decision on what value to
put on human lives saved. Perhaps it is justifiable to avoid this thorny question by
using, instead, the expenditures that could be predicted as having been avoided in
litigation lawsuits. In either case, benefit-cost analyses would indicate that some
proposed safety measures had gone too far. It is also certain that safety aspects of
bicycles, regular and recumbent, would be found to have not received enough attention. We
cheerfully ride bicycles with brakes that wear fast and don't stop us safely, on rims and
tires that can explode at at least a thousand times the frequency of those on motor
vehicles, and so forth. There are several ways (research and development, industry
standards and government regulation being three) whereby improvements in our HPVs can be
attained. We may have to depend on a fourth way: liability litigation.

CONCLUSIONS.

The threat of US liability litigation has been exaggerated, especially with regard to
human-powered vehicles. The many US manufacturers of recumbent bicycles and other
velomobiles are not being overtaken by a flood of lawsuits. The quality of design and
manufacture of the great majority of vehicles is very high, some of this high quality
undoubtedly having been brought about by the desire of the designers and manufacturers to
be able to stand up in court to defend their work. Liability-insurance rates for
manufacturers have actually fallen as a result of the increased safety brought about by
lawsuits and by regulation, and the insurance companies take most of the impact should a
suit be filed. Finally, if a suit is filed and goes to trial, the great majority of US
juries make fair and reasonable awards.

ACKNOWLEDGMENTS.

Attorneys Neil Sugarman and Phillip M. Davis were kind enough to read early drafts of
this paper and to give valuable advice and documents that I have incorporated in the final
version. My spouse Ellen Wilson also gave much-appreciated criticism. I am most grateful
for their help.